140 P. 519 | Nev. | 1914
By the Court,
This is an action in damages for personal injuries, alleged to have been sustained by the respondent through the negligence of the appellant, in whose employ he was engaged.
The record discloses that the respondent, Peterson, on the 14th day of June, 1911, was a member of the 6 p. m. shift in the Mary mine, and on the date of the accident was engaged as a machine driller in the Valcalda tunnel. At about 1 o’clock in the morning of the 15th of June, the respondent, while so engaged, drilled into an unexploded hole left by the previous shift. The result of his act was an explosion, by reason of which one member of the shift was instantly killed, another died in nine days
The trial was had before a jury in the Second judicial district court, and a verdict was rendered in favor of respondent in the sum of $29,250. The appellant in this case, defendant in the court below, interposed and especially pleaded contributory negligence on the part of respondent, assumption of risk, and an executed release in accord and satisfaction.
From the judgment rendered in favor of respondent, and from the order denying appellant’s motion for a new trial, appeal is taken to this court.
The appellant sets up four major grounds upon which it relies for reversal, namely: Prejudicial statements and remarks made by the court during the course of the trial; erroneous rulings as to the admissibility of testimony made during the course of the trial; failure on the part of the respondent to establish the negligence of appellant; and errors of the trial court in giving certain instructions and' refusing certain other offered instructions.
Assignment No. 53 has to do with the remarks of the court made in ruling upon the motion of appellant to strike certain testimony. The court in that instance ruled against the moving party, and, in the course of his ruling, made this remark: "I don’t think the testimony does you any harm.”
Assignment No. 77 is with reference to the remarks of the court in overruling an objection made by counsel for respondent to an interrogatory propounded by counsel for appellant, in which the court said: "I will tell you. (Addressing counsel for appellant.) Just as soon as this went in evidence, or you could have called Mr. Jussen right after they were put in evidence, or you could do it afterwards. You are not on surrebuttal testimony, but I will allow it just to show you that we give you every leeway possible, possibly more than the court should.”
"Q. Now you were not there, were you, when this explosion occurred? A. I hope not.
"Q. And all that you know about the explosion was what you speculated upon or the conclusions you drew after you went up there; is that true? A. Yes, sir.
"Mr. Miller — Object; it is a compound question.
"Mr. Hairston — And a misleading question.
"The Court — Sustain the objection.
" Mr. Platt — Exception on the ground it is proper cross-examination.
" Mr. Miller — Move the answer be stricken out.
"The Court — I will tell you. I have known you a long time, and I like you, and you are a good fellow; but, when you come to the trial of a case, I know an attorney is ambitious; I know he wants to do everything in the world; and I admire that; but don’t step beyond the bounds. ”
To the latter remark exception was taken by counsel for appellant.
All of these remarks set up as assignments of error by appellant were made in .the presence and hearing of the jury, and were excepted to by counsel for appellant. It is difficult to understand why remarks of the character appearing in the record in this case are necessary at all on the part of the trial court. While it is true that not every remark of the trial court will- constitute reversible error, where it is made with reference to the admissibility of evidence, yet there is nothing of which a nisi prius judge should be more careful than in his remarks or assertions made with reference to admitted or rejected testimony during the course of a trial. The average juror is a layman; the average layman looks with most profound respect to the presiding judge; and the jury is, as a rule, alert to any remark jshat will indicate favor or
Appellant assigns as error the refusal of the trial court to grant appellant’s motion for a nonsuit and for an instructed verdict. In this respect it is the contention
While many of the authorities relied upon by counsel for appellant would sustain his contention in jurisdictions where the common-law rule of fellow servant prevails, they are not applicable under statutes such as ours. In other cases relied upon by appellant, the statement of the facts discloses that the party injured was a machine driller following himself with no intervening shift, and had personal knowledge that one or more of the holes which he himself had charged had failed to explode. These cases are not analogous to the one at bar, for the reason that the record here discloses that the respondent worked alternate shifts, and that it was his duty, in the course of his employment, to set up his machine and drill immediately following the explosion of a round of holes drilled and charged by the preceding shift, and hence could have no personal knowledge of the failure of any one of the holes to explode. There is a substantial conflict in the testimony as to whether or not the respondent was warned, or had any notice, that the preceding shift had left an unexploded hole. In fact, the record strongly bears out the contention of respondent that he had no notice.
It appears to be almost conclusively established that the appellant company had no regular system whereby
From the record in this case, it is disclosed that it is customary in some mines, and a positive rule in others, that the off-going shift shall give notice of missed holes by posting on a blackboard or by other methods. The object and natural effect of such rules or customs is to give notice of an unusual danger caused by the presence of missed holes in the place where the oncoming shift is about to work. It serves as a warning to those who are about to enter the place in order that they may use reasonable diligence and extra precaution to determine the location of the missed holes and to guard against the dangers. It appears in this case no such rule was prescribed and no such custom adhered to. The miner who enters the workings unaware of this unusual danger cannot, in reason, be said to assume this additional risk. (Shannon v. Consol., etc., 24 Wash. 119, 64 Pac. 169;
There are many assignments of error contended for by appellant in this case applicable to the rulings of the court made as to the admissibility of testimony. In view of the fact that it is our judgment that this case must be reversed by reason of a ruling of the trial court hereafter discussed, we shall take up but one of these assignments.
During the course of the trial, the witness Meyers was produced on behalf of the appellant, and the proceedings applicable to appellant’s assignment No. 25 are as follows:
" Q. (By Mr. Platt) —Did you ever have a conversation with Mr. Peterson at any time subsequent to the accident? A. I talked to him about it afterwards; yes.
"Q. And where was that conversation? A. In the compressor room.
" Q. Will you please tell us where, as near as you can remember? A. By the stove there.
"Q. About what time was it? A. Along in the evening, probably half-past 7 or 8 o’clock.
"Q. In what month, day of the month, as near as you remember? A. I think it was in September, some time; I don’t remember.
"Q. Of what year? A. 1911.
"Q. And what was Mr. Peterson doing in the.compressor room at that time? A. Running the compressor.
" Q. What was that conversation ?
"Mr. Hairston — I will ask what his purpose is. Do not know whether it is relevant or not.
■" Mr. Platt — The purpose of this conversation is to show*128 that Mr. Peterson, by his own declaration, did not hold Mr. Meyers or the defendant company liable for this accident.
"Mr. Hairston — Object on the ground it is immaterial, irrelevant, and incompetent, and has nothing to do with this cause of action.
" Mr. Platt — I would like to make the offer a little more specific. We make this offer for the following reasons: First, to show that this action was instituted in bad faith, with the knowledge upon the part of the plaintiff, when it was instituted, that he himself knew that Mr. Meyers, the shift boss, and the defendant company was not responsible for the injury and that he, himself, was responsible; second, we offer it for the purpose of contradicting any manner of evidence or imputed evidence of the negligence of the defendant company, and in sustaining the contention of the defendant’s answer that the alleged injury was not caused by and through the contributory negligence of the defendant; and we offer it, in the third instance, to contradict and impeach the testimony of the plaintiff’s witnesses tending to show negligence upon the part of the defendant company. We offer it as a part of the res gestse of this action. We offer it as a declaration made by the plaintiff himself to an employee of the company, which employee was engaged as a shift boss in the employ of the defendant company at the time of the accident, and which declaration contradicts flatly the declaration set up in the complaint in this action. We introduce it for the further reason that it is a complete and adequate defense to this action. That is why we offer it.
“Mr. Miller — Argues.
“Mr. Platt — I don’t desire to argue it; I will take a ruling on it.
“Mr. Hairston — Argues.
“The Court — The offer is denied.
“Mr. Platt — Exception upon the grounds stated in the offer, without repeating the grounds separately and distinctly.
“Q. Now, Mr. Meyers, did you have a conversation with Mr. Peterson in the month of September, 1911, in*129 which he stated to you that he recognized that you or the company were not responsible for that accident?
“Mr. Hairston — Object to that as leading, suggestive, and incompetent.
“Mr. Platt — If the court please, we desire the record preserved by asking a direct question in support substantially of the offer we made.
“The Court — Sustain the objection.
“Mr. Platt — Take an exception on the grounds stated in the original offer.
“Q. Now, in order, if the court please, that I may get a ruling on the question directly in relation to the ruling on the offer we have made, I desire to ask this man: Mr. Meyers, state whether or not you. had a conversation with Mr. Peterson concerning the subject-matter of this action at any time subsequent to the time of the accident.
“Mr. Miller — Object.
“The Court — I will allow that question.
“Q. Just answer the question ‘Yes’ or ‘No.’ A. Yes, sir.
“Q. When was that conversation ?
“Mr. Miller — Object; incompetent, irrelevant, and immaterial.
“Mr. Platt — Take your honor’s ruling, if the court please. We made the offer, and we want to get a ruling of the court now. We desire to ask the question under the objection of counsel, in order that we may get the ruling on the question we ask.
“Mr. Miller — Same objection; irrelevant, incompetent, and immaterial.
“The Court — Sustain the objection. When you state what is the purport of the conversation.
“Mr. Platt — I gave your honor the purport of the conversation.
“The Court — Sustain the objection.
“Mr. Platt — We ask an exception upon the grounds stated in the offer, which we don’t desire to repeat, and which we will consider now repeated in kmc verba.
“Mr. Miller — All right.
*130 “Mr. Martinson — And on the further ground that the purported — that the questions and the offer made would indicate that there was an admission on the part of the plaintiff to the same effect, going to the merits of this controversy.”
The offer of evidence, as indicated by the record, and as declared by counsel for appellant in his statement to the trial court, was that of a declaration against interest, made by respondent to the witness Peterson. This was clearly indicated, in our judgment, by the statement made by counsel, wherein he set forth to the trial court the reasons upon which he based the offer, and indicated thereby the nature of the answer which he expected from the witness; the witness having already testified that a conversation had taken place.
In the case under consideration, the respondent, by his pleadings, alleged the negligence of the plaintiff company, and by his own testimony, and by the testimony of witnesses offered in behalf of his contention, circumstances were related tending to establish the fact that the accident was caused by reason of the negligence of the appellant. The issues were squarely joined in this case on the question of negligence. It was the province of appellant, under the pleadings in the case, and in
Speaking upon this subject, Professor Wigmore in his work on Evidence says: “Just as a witness’s testimony is discredited when it appears that on another occasion he has made a statement inconsistent with that testimony, so also the party is discredited when it appears that on some other occasion he has made a statement inconsistent with his present claim. This is the simple theory upon which a party’s admissions — of the informal sort, which might better be termed ‘quasi admissions’— are every day received in evidence on behalf of his opponent. The witness speaks in court through his testimony only, and hence his testimony forms the sole basis upon which the inconsistency of his other statement is predicated. But the party, whether he himself takes the stand or not, speaks always through his pleadings, and through the testimony of his witnesses put forward to support his pleadings, hence the basis upon which may be predicated a discrediting inconsistency on his part includes the whole range of facts asserted in his pleadings and in the testimony relied on by him. Thus, in effect, and broadly, anything said by the party may be used against him as an admission, providing it exhibits the quality of inconsistency with the facts now asserted by him in pleadings or in testimony.” (Wigmore on Evidence, vol. 2, sec. 1048; Jones on Evidence, sec. 235; Ruling Case Law, vol. 1, p. 468.)
“Admissions of a party against his interest are
In the case of Helman v. Pittsburg Co., 58 Ohio St. 400, 50 N. E. 986, 41 L. R. A. 860, the Supreme Court of Ohio, in passing upon this question, said: “The defendant, therefore, has the right to introduce any evidence which tends to weaken or disprove the facts necessary to be established to make out the plaintiff’s case; i. e., the facts constituting the conditions upon which the action is given by the statute. If death had not ensued, the deceased could not recover damages for his injuries, if it should be established on the trial that his injuries were caused by his own carelessness or negligence; and his statements after the injury, and while in his right mind, tending to show that the injury was caused by his own negligence and carelessness, would be good evidence against him in an action brought in his own behalf during his lifetime.”
In the case of Walker v. Brantner, 59 Kan. 117, 52 Pac. 80, 68 Am. St. Rep. 344, the superintendent of the railroad on which deceased received his injuries was called as a witness for the defendant company, and stated, among other things, that he had a talk with Brantner,
In the case of Gulzoni v. Tyler, 64 Cal. 334, 30 Pac. 981, the Supreme Court of California said: “The evidence of what the plaintiff said when asked whether he blamed anybody on the boat should not have been stricken out. Evidence of what he said in regard to the occurrence was admissible for the defense. If he expressed an opinion as to who was to blame, the defendants were entitled to have the benefit of it.”
In the case under consideration, the question propounded to the- witness Meyers called for a statement as to the conversation between the witness and the plaintiff, Peterson. Counsel for appellant, in his offer and statement made to the trial court, set forth, summarily at least, what he expected to prove by the witness. It was to the effect that the plaintiff had expressed the knowledge to the witness Meyers that the defendant company was not responsible for his injuries, and, moreover, that he had expressed himself to the witness Meyers to the effect that he himself was responsible. It was offered by the appellant as a declaration made by the
In the case of Holman v. Boston Co., 20 Colo. 7, 36 Pac. 797, it appears from the statement of facts, as set forth in the opinion, that an offer very similar to the offer made to the trial court in this case was made by the defendant, and the Supreme Court of Colorado, speaking through Mr. Chief Justice Hayt, said: “The evidence offered was proper, and should have been admitted. The witness was a party plaintiff to the action, and his admissions were competent evidence against him. As the defendant was not permitted to testify in reference thereto, we must assume that he would, but for the erroneous ruling of the court, have testified that this plaintiff, at the time, admitted that the fire occurred without fault on the part of defendant. Testimony of such an admission was proper as substantive evidence, and should have been allowed to go to the jury. * * * And we are unable to say that the verdict upon the last trial might not have been different had the rejected evidence been admitted. Much or little weight might have been given it in the discretion of the jury, or its effect might have been entirely overcome by other evidence; nevertheless it was competent, and should have been submitted
This court, speaking through Mr. Chief Justice Lewis in the case of Rollins v. Strout, 6 Nev. 150, speaking of admissions in general, said: “The general rule is that, when the proof of acts done by a person is admissible, any declarations accompanying them which tend to explain such acts or the motives controlling them are likewise admissible. The rule is certainly not confined to such declarations as may be made against the interest of the person making them. Such declárations are received under another rule and for different reasons. When made against interest, they are received even when not accompanying such acts.”
While the decision in the Rollins-Strout case, supra, was not strictly in point as being applicable to the case under consideration, nevertheless this court, .in the last sentence of the above quotation, indorsed the general rule applicable to admissibility of admissions against interest, and, while the court in that case did not go into the subject at length, it being one not essential to the decision, the rule applicable to the admissibility of evidence of that character was asserted, even though it might be considered in the form of obiter dicta.
While it is true that courts generally hold that admissions or declarations against interest are not conclusive as to the effect of what the declarant stated, yet such admissions should be considered in connection with the circumstances, and given such weight as they are entitled to in deciding whether or not the party spoke with mature consideration and in regard to his legal rights, or whether he meant the defendant was not to blame for any lawful intention to injure him. (Cooper v. Central Rd., 44 Iowa, 134; Central Rd. v. Mooseley, 112 Ga. 914, 38 S. E. 350.)
While it is true in this case that, if the respondent did make a declaration against his interest or against his general position, as assumed in his pleadings and by his evidence in the trial, the jury would not have been bound to find that the evidence in that respect was conclusive of his negligence. But, however this may be, the evidence, if such there was, should have gone to the jury. (Martinson v. National Co., 166 Mass. 4, 43 N. E. 513; Copley v. Union Pacific, 26 Utah, 361, 73 Pac. 517; Binequicz v. Hagland, 103 Minn. 297, 115 N. W. 271, 15 L. R. A. n. s. 1096, 14 Ann. Cas. 225.)
Counsel for respondent contend that the offer was not in proper form to constitute a good tender of evidence, and they state: “This is not in proper form to constitute a good tender of evidence. To make it a good tender, it ought to have stated the facts offered to be proved, and not to state the legal effect of the facts offered to be proved. The alleged tender was lacking in not being specific, it was too general in character, and it would be
“Take your honor’s ruling, if the court please. We made the offer, and we want to get a ruling of the court now. We desire to ask the question under the objection of counsel, in order that we may get a ruling on the question we asked.
“Mr. Miller — Same objection; irrelevant, incompetent, and immaterial.
“The Court — Sustain the objection. When you state what is the purport of the conversation.”
From this it will appear that the court sustained the obj ection of counsel for respondent not by reason of the form of the offer, but by reason of the intendment of the offer, thereby holding that its purpose was subject to the objection interposed. From this it further appears that the court thoroughly understood the object and purpose of the offer, and from the statement made by counsel for appellant to the trial court as to the scope and substance of the offer, and the purpose and object of the same, it is manifest that the court understood what evidence was offered, and ruled it out by reason of its purpose.
Respondent further contends that it was not error on the part of the court to rule against the admission of the offered evidence, inasmuch as it was not shown definitely and specifically to be pertinent to the issues involved. To this it may be said that the major issue involved in this case was the negligence of the appellant company, and any element of competent evidence going directly
The judgment and order appealed from should be reversed, and the cause remanded for a new trial.
It is so ordered.